Monday, October 31, 2011

Medical marijuana backers sue feds

California medical marijuana patients, storefront dispensaries and their landlords are marshaling forces to stave off a massive federal crackdown against them.

On Thursday, the cause’s largest advocacy organization sued the U.S. attorney general and the top federal prosecutor in Northern California. Another major challenge is being prepared.

Meanwhile, there’s a growing move by California Attorney General Kamala Harris and others to develop defensible statewide regulations for collectives, which are trapped between state and federal law.

This week, several supporters of 2010’s unsuccessful Proposition 19 to legalize marijuana for recreational use said they were drafting a 2012 ballot initiative that would impose controls on California’s loose-knit medical cannabis industry.

The moves come after California’s four U.S. attorneys on Oct. 7 announced a campaign to shutter commercial marijuana dispensaries, accusing producers and distributors of using the state’s 1996 medical marijuana law as a cover for reaping huge profits.

Of particular concern are collectives alleged to be operating too close to where children gather or those serving as fronts for drug dealing.

In San Diego, U.S. Attorney Laura Duffy mailed hundreds of letters warning dispensary operators and their landlords to shut down within 45 days or risk criminal prosecution and property seizures. Her counterparts mailed letters to several municipalities targeting their medical marijuana regulations.

In the federal lawsuit filed Thursday in San Francisco, Americans for Safe Access claims the Obama administration is attempting to subvert state and local medical marijuana laws. The advocacy group, which has 20,000 members in California, argues that the administration has “instituted a policy to dismantle the medical marijuana laws of the state of California and to coerce its municipalities to pass bans on medical marijuana dispensaries.”

While the Department of Justice is entitled to enforce federal marijuana laws, the 10th Amendment bars it from using coercive tactics to commandeer the lawmaking functions of the state, said Joe Elford, the group’s attorney.

The case is aimed at restoring the sovereign and Constitutional right of the state to establish its own public health laws based on the country’s federalist principles, Elford said.

“The short of it is, the feds can’t tell California what to do,” he said.

The 17-page lawsuit, which names Attorney General Eric Holder and U.S. Attorney Melinda Haag, seeks an injunction barring the Department of Justice from interfering with collectives that meet state and local regulations along with the return of 99 cannabis plants seized during the Oct. 13 raid of a licensed collective in Mendocino County.

Also on Thursday, the spokesman for lawyers representing dozens of collectives and their landlords across the state said the group is preparing to file a separate lawsuit in federal court. P.J. Johnston described pending action by the still-unnamed group as a “multipronged, organized effort to get into court and to send a message to the federal government that we need to stop the aggression and sit down and talk reasonably about these issues.”

In announcing the crackdown, Duffy referred to the state’s marijuana trade as a pervasive, for-profit industry that violates federal law and has little to do with providing medical relief to the sick. The effort was sparked in part because of the proliferation of marijuana cultivation and retail storefronts across the state, Duffy said in a recent interview.

Federal prosecutors said local governments are prevented from allowing the use of marijuana, including enacting local zoning regulations, and this month a state appellate court concluded the same. Other appellate court decisions in California have ruled that state medical marijuana laws are not trumped by federal law.

In San Diego, City Attorney Jan Goldsmith has pledged to close every dispensary in the city because zoning laws do not permit them. About 20 to 25 collectives have closed and another 20 to 25 are preparing to, said Eugene Davidovich, local chapter coordinator for Americans for Safe Access. Meanwhile, 12 more dispensaries have opened, he said.

Many, including Higher Healing Patient Association on Mission Gorge Road, closed after receiving federal letters, city notices of violation, or both. John Murphy, the attorney for Higher Healing, said his clients operate as nonprofits, obeying all state laws and guidelines.

Greg Shultz, the owner of GSC Wellness on Palm Avenue, said he received a notice of violation from the city with a “huge laundry list of code compliance violations that were completely asinine.” His landlord also received a federal letter. Still, they plan to stick it out.

“I am not going to be pushed around. I come from a large family of law enforcement and I am not a cartel person,” Shultz said. “We have many, many, many cancer patients that come here and they get their medication for free. It’s really kind of a travesty.”

Approved as a ballot measure in 1996, Proposition 215 allows people with a doctor’s approval to use marijuana and receive it from their caregivers. However, it did not expressly allow or regulate dispensaries. State legislation in 2003 and guidelines from then-Attorney General Jerry Brown in 2009 authorized distribution by nonprofit collectives, but much of it was not delineated in law.

“While there are definite ambiguities in state law that must be resolved either by the state legislature or the courts,” Harris said last week in a highly anticipated statement, “an overly broad federal enforcement campaign will make it more difficult for legitimate patients to access physician-recommended medicine in California.”

Assemblyman Tom Ammiano, D-San Francisco, said he was willing to explore legislation that defines legal distribution, but warned that forging ahead would be difficult given the lack of direction from the federal government.